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People v. Johnson

MAY 3, 1972.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

WILLIAM JOHNSON, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. RICHARD J. FITZGERALD, Judge, presiding.

MR. JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT:

The defendant, William Johnson, was indicted on a charge of indecent liberties with a child. After a trial by jury, he was convicted and sentenced to serve not less than ten nor more than twenty years in the penitentiary.

On appeal, he contends (1) remarks and argument of the prosecutor deprived him of a fair trial and (2) the sentence imposed was excessive. No questions are raised concerning the sufficiency of the evidence to sustain the conviction.

Before turning to the defendant's contentions we shall briefly set forth the facts. On May 1, 1969, the victim, a nine year old newspaper delivery boy, was found performing a deviate sexual act upon the defendant in the bedroom of Johnson's residence. The victim testified that when he came to Johnson's apartment to deliver a newspaper, the defendant grabbed him by the arm, threatened to kill him, and compelled him to commit the deviate sexual act. Two witnesses testified that they discovered the defendant and the victim in the apartment while the act was occurring. Officer Russell Norris of the Chicago Police Department testified that the defendant, upon his arrest, stated after being advised of his constitutional rights that the victim requested permission to perform the deviate sexual act. At trial, the defendant testified that he permitted a friend of the paperboy to enter his apartment and to watch television. He then went into the bedroom. About five minutes later the victim joined him and asked permission to lie down on one of the twin beds. The defendant feel asleep; and when he awoke, he found the victim performing the act complained of upon his person. He immediately made the boy stop and told the victim to get ready to go home.

During cross-examination of the defendant the following exchange occurred:

"Q. [by Assistant State's Attorney]: As a matter of fact you just are a pervert, aren't you?

Mr. Stoll [Assistant Public Defender]: Objection, Judge.

The Court: Sustained.

Mr. Stoll: I ask for a mistrial.

The Court: The jury is instructed to disregard that statement.

The Witness: No sir."

At the conclusion of the opening part of the final argument, the prosecutor stated, "If you believe his [defendant's] story reasonable, then you discharge him and he will get right up out of his chair and walk right out of this courtroom and probably grab another nine year old boy." An objection was made to this comment and sustained.

During the rebuttal portion of the State's closing argument, the prosecutor, in referring to the defendant, stated, "There is your criminal. There is your moron sitting in that seat." Objection was raised, and the word, "moron," was stricken. The closing argument concluded in the following manner:

"Now, we have proven our case and we have proven it beyond a reasonable doubt, proven it beyond all doubt. You have grandchildren, you have children of your own. Let that man back out on the street and you are going to have to keep your children locked up. Please don't let this crime go unpunished. We have done our duty. We have proven him guilty beyond a reasonable doubt. You have taken a sworn oath to weigh the evidence, take the law as the judge gives it to you and apply the evidence as you heard it to the law, with your common sense and with all of that, your common sense and the ...


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